WASHINGTON, February 29, 2012 -A recent decision regarding efforts to impose numeric nutrient criteria in the state of Florida has both environmentalists and agriculturists claiming partial victory.

The case stems from actions taken by Earthjustice and several environmental groups in 2008 when they filed suit to force the EPA to overstep the efforts already underway in Florida and impose what critics say are scientifically questionable limits on nutrients. The Florida Department of Environmental Protection (FDEP) started the process to establish numeric nutrient criteria, but they were derailed in August 2009, when EPA entered into a settlement agreement with the environmental groups.

The Fertilizer Institute, the Agricultural Retailers Association (ARA), the American Farm Bureau Federation (AFBF) and many others challenged the decision in federal court.

In ruling on the case last week, U.S. District Court Judge Robert L. Hinkle upheld a 2009 determination by the EPA that numeric nutrient standards are necessary for Florida's waters, but invalidated certain aspects of the water quality criteria the agency developed. Hinkle upheld the criteria for lakes and springs, but invalidated the criteria for streams, saying they were “arbitrary and capricious.”

TFI’s Vice President for Scientific Programs, Bill Herz, described the decision as a “partial, but important victory.”

The Florida standards were in a narrative form and EPA said it was going to translate them into a number, explained AFBF Chief Legal Counsel Ellen Steen in an interview on AFBF’s Newsline. “But they tried to set a number that was based on the most pristine in natural conditions. So in other words, EPA found that any increase in nutrient levels was harmful and they set the numbers to prevent that.” She said the Farm Bureau argued - and the court agreed - that the state is

actually the entity that controls how clean it wants its waters to be and EPA can’t override that by trying to impose standards that reflect conditions „before man existed in these areas.”

According to TFI, Hinkle found that biological harm, not just an increase of nutrients above background concentrations, must be the basis for EPA’s numeric nutrient standards. Specifically, the court determined that EPA’s final stream criteria for the State of Florida, as well as certain aspects of the downstream protection values (DPV) for Florida lakes, are invalid.

“Nutrients occur naturally, and in balanced concentrations they contribute to healthy ecosystems,” said TFI President Ford West.

Agricultural groups maintain that the case sets a potentially significant precedent because the Court found that the Agency did not demonstrate that increases in nutrients result in a harmful increase in flora or fauna in streams. Farm organizations also hope the ruling sends a message to EPA that states have the authority to determine water quality standards within their boundaries.

Daren Coppock, ARA president and CEO, said the ruling tells EPA that it must “use sound science in its regulation of water quality nationally.” He also said the case “represents a perfect example of what the agriculture industry can accomplish through a coordinated effort.”

However, the judge also backed the EPA administrator's decision to allow site-specific alternative criteria and the procedures for adopting them. Earthjustice hailed the decision, saying that, with Judge Hinkle’s ruling, “decade of delays in setting limits on sewage, manure and fertilizer contamination in Florida waters ended.”

Florida State Attorney General Pam Bondi disagreed, saying in a statement that the state has prevailed on a “key” issue.

“This is a major victory for the state because the bulk of the compliance costs associated with EPA's numeric nutrient criteria would have stemmed from the stream rule,” Bondi said in a written statement. “This ruling will give Florida an opportunity to enact rules to protect our streams without crippling our economy. Yet another instance of federal government overreach has been prevented.”


Original story printed in February 29, 2012 Agri-Pulse Newsletter.

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